Passionate about IP! Since June 2003 the IPKat weblog has covered copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. The team is David Brophy, Birgit Clark, Merpel, Jeremy Phillips, Eleonora Rosati, Darren Smyth, Annsley Merelle Ward and Neil J. Wilkof. You're welcome to read, post comments and participate in our community. You can email the Kats here

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Monday, 5 December 2011

The AmeriKat a bit in the darkabout what exactly is going on inBrussels

The AmeriKat has been spending her afternoon trying to ascertain exactly what has been agreed in respect of the patent proposals, what is being televised and what is not, and where the discussions are with the location of the patent court. It has not been easy - the earlier press conference told us little and raised more questions as to what the "agreed" text of the proposals look like. However, the best part of being part of an active intellectual property community is that the Kat is not alone in reporting on today's events.

IPKat friend James Nurton of Managing IP left a comment on the last update (here). James says, as previously reported, that they understand that the discussions on the unified patent court are not being televised because it is an international agreement. He also reports that Managing IP understands that the reason why the two legislative policy debates were removed from the agenda is because they were agreed between the Coreper (the head or deputy heads of mission from the EU Member States) and Parliament on Friday. Read more from James and Managing IP here.

Today, the Kat received in its inbox a document dated 1/2 December 2011 which has not yet been made available (LINK FIXED: click here for the document). It purports to be (but the Amerikat has looked at so many of these documents over the past week) the compromised agreement between the Council and Commission on the "Proposed Regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection". The AmeriKat will let readers assess the contents of the compromise for themselves for the time being, but she notes that the problems remain the same and there appears to be a couple of new drafting/translation issues.

Reports from EUObserver also suggest that the seat(s) of the Unified Patent Court - reported to be between London, Munich and Paris - are set to be debated into the night.

UPDATE: The Council has just published their press release summing-up today's Competitiveness Council meeting. As expected, there is nothing about the patent court (top right hand corner of first page), and a small reference to the proposal on the unitary patent system being submitted before the end of 2011 (on page 21). Nothing off too much note, notes the AmeriKat. Professor Steve Peers of the University of Essex just commented on the Press Release saying:

"You will notice it includes today's issues 'except the debate on patent court', which is presumably still ongoing. (I think the Amerikat may need to switch her body clock back to Eastern Standard Time if she is going to stay up waiting for the conclusion of this debate).

The two patent legislative measures are not mentioned at all. So indeed there was no secret debate to hide (unless it was also deliberately not mentioned in the press release)."

The deletion of Art 5 (prior rights - 54(3) art now relevant for whole of EU and not just the member state of the prior right) makes sense in the grand scheme of a single European patent/market. However, in practice it will favour the filing of national patents, especially via the PCT national phase, where a search prior to national phase entry would uncover the prior rights.

You will notice it includes today's issues 'except the debate on patent court', which is presumably still ongoing. (I think the Amerikat may need to switch her body clock back to Eastern Standard Time if she is going to stay up waiting for the conclusion of this debate).

The two patent legislative measures are not mentioned at all. So indeed there was no secret debate to hide (unless it was also deliberately not mentioned in the press release).

The link works fine. Article 22 includes the point raised earlier about the entry into force by 2014 - the Regs will enter into force by that date or when the litigation agreement is in force, whichever is later. So even if enough States ratify the treaty for it to come into force in 2012 or 2013 already, the legislation will not apply until 1.1.2014. If there are enough ratifications by that time for the treaty to come into force, then would-be applicants for a unitary patent will have a fixed date to work around.

But the legislation does not, as the EP wanted, contain a rule about how many States have to ratify the treaty for it to come into force - presumably that rule will be in the treaty itself. However, since the Regulation provides for its possible application only in those States which have ratified the treaty, it must be envisaged that not all of them will have to ratify it.